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NASHVILLE, Tenn. (AP) — The Tennessee Attorney General is defending a state law that caps damages in civil cases in a lawsuit filed by the husband of a Brentwood woman who died after getting fungal meningitis from tainted steroid injections.
The lawsuit was filed by Wayne Reed over the death of his wife, Diana, against the owners and operators of Saint Thomas Outpatient Neurosurgical Center, which administered the shots produced by the Massachusetts-based New England Compounding Center.
Diana Reed died on Oct. 3 and was the primary caregiver for her husband, who has Lou Gehrig’s disease and uses a wheelchair. The lawsuit accuses those who ran the outpatient clinic of being negligent and reckless for using compounded drugs from NECC.
More than 700 people have gotten sick from the injections and 50 have died across the country stemming from the outbreak that was first discovered in Tennessee last fall.
Wayne Reed’s complaint asks for $12.5 million in compensatory damages, well above the maximum amount that plaintiffs can receive under a Tennessee law that went into effect in 2011 that caps damages from personal injury cases.
Reed’s attorneys claim the law that caps damages at $750,000 for non-economic damages and $500,000 for punitive damages is unconstitutional. The lawsuit says that it deprives him of his protected right to trial by jury and usurps the powers of the judicial branch.
Attorney General Robert Cooper filed a motion to intervene in the case to defend the state law and a hearing on the state’s request is scheduled for Friday morning in Davidson County Circuit Court.

The U.S. Chamber of Commerce Institute for Legal Reform has rated Tennessee as the 26th best state information in ‘legal climate for business.’
That’s down from 19th in 2010, the year before Gov. Bill Haslam’s tort reform law was enacted. That law has multiple provisions, including new limits on damages that can be awarded to plaintiffs bringing lawsuits against businesses, and was promoted by the governor as making Tennessee more business-friendly.
The Chamber group rates Delaware as the best state for businesses in dealing with the civil justice system,, West Virginia the worst.
The group’s national news release, which focuses on what the Chamber considers the “worst” states, is HERE. The state-by-state ratings map is HERE.
The Tennessee “detailed” page is HERE.

Unsatisfied with landmark tort reform legislation that Gov. Bill Haslam and Republican lawmakers successfully enacted last year, business, insurance and health-care interests continue to push for laws that will reduce their exposure to civil lawsuits.
So reports The Tennessean:Proponents of the laws say they will help prevent the filing of junk lawsuits and improve Tennessee’s business climate. Opponents say they would improperly shield wrongdoers and close the courthouse doors to all but the very wealthy.
Last year’s legislation capped non-economic damages such as pain and sufferring at $750,000 and punitive damages at $500,000, with some exceptions for cases involving “catastrophic” losses or intentional misconduct, records destruction, or conduct under influence of drugs or alcohol. It also restricted claims that can be brought under the Tennessee Consumer Protection Act.
The Tennessee Civil Justice Act of 2011, as it was called, was enacted over the objection of trial lawyers and consumer advocates.
This year, the same coalition of businesspeople that helped sell the governor’s tort reform package, Tennesseans for Economic Growth, wants more limitations imposed in civil lawsuits, including a handful of bills targeting the losing side in civil cases and litigants who refuse to settle lawsuits.
One bill would require a party who loses a motion to dismiss to pay the litigation costs of the opposing party.
“Loser pays on motions to dismiss is designed to prevent frivolous lawsuits,” said Lee Barfield, a lawyer at Bass, Berry & Sims and lobbyist for the business coalition.
Another bill would require a plaintiff to pay the litigation costs of a defendant if the plaintiff refused a settlement offer from the defendant only to win less than 75 percent of the settlement offer at trial. The law would similarly punish defendants who refuse a settlement offer if the plaintiff wins more than 125 percent of their settlement offer at trial.
….Gary Zelizer, director of governmental affairs at the Tennessee Medical Association, said his organization will continue to push for a bill that would prevent emergency room patients from suing hospitals and doctors for negligence unless they can show “gross negligence.” When mistakes occur, Zelizer said it’s unfair to hold emergency room physicians to the same standard as doctors who know, and have a history with, a patient.

State Sales Tax Hike? ‘Ridiculous,’ Says Ramsey
In Washington County, a proposal to raise the local sales tax is being floated. As Robert Houk sees it, one of the arguments by proponents is misguided.School board members and at least one city commissioner have said hiking the local rate would be a defensive move. They fear the state General Assembly might decide to raise the state’s rate to the maximum and keep all the revenues in Nashville.
It’s an argument that has been used before to try to convince voters to raise the local sales tax rate. It’s also one that has failed to make a difference at the ballot box…In each of those (past county) referendums, proponents said the state was just itching to keep the remaining portion of the local option in Nashville. Doing so would constitute a state tax increase, and legislative leaders I’ve spoken to say that’s not going to happen on their watch.
In fact, Lt. Gov. Ron Ramsey, R-Blountville, told me last week it’s “ridiculous” to think so. “I’ve heard that argument before, but it’s never been discussed in Nashville,” Ramsey said.
He said the idea of raising the sales tax is not even on the radar screen. He said the Republican-led General Assembly has already made massive cuts to balance the state budget and is “prepared to make even more if necessary.”
Talk of a tax increase is poison to Republican lawmakers. Many of them have signed irresponsible anti-tax increase pledges that could be used against them come re-election time if they were to go back on their promises. Regardless of what you think of the Republican stand on taxes, the GOP is a disciplined party that punishes any members who dare go astray.Tort Reform Not Conservative?
From a Tennessean op-ed by attorney Gary Blackburn:A General Assembly with a lieutenant governor who threatened to give the “boot” to the federal government has commanded the enforcement of a purely procedural standard on dismissal of lawsuits adopted by the U.S. Supreme Court rather than that adopted by the Tennessee Supreme Court, because it strengthens the opportunity of wealthy defendants to deprive citizens the right to a jury trial in meritorious cases.
A few years ago, Nashville had a businessman who would disassemble your transmission, demand an exorbitant price, and when you refused to pay, hand you a box of parts. He and his company were repeatedly sued for “unfair and deceptive trade practices” under the Tennessee Consumer Protection Act. No more. If you experience that or any of a myriad of consumer outrages, your only unlikely alternative is to get the overburdened Tennessee attorney general’s office to pursue your claim. The bat is removed from the hands of your own attorney.
Access to our courts derived from the Magna Carta and embedded in our Constitution since 1796 is under siege by people claiming to be “conservatives.”
True conservatives preserve ancient rules and institutions, which are the product of experience. True “conservatives” are not proponents of capricious and motivated change.Re-evaluating Teacher Evaluations
Tennessee’s new teacher evaluation system needs re-evaluating, says Gail Kerr.If it were just a few grousers weighing in, negative reviews would be easy to shrug off — the new system is designed, after all, to root out bad teachers who have been allowed to continue year after year.
But teachers are complaining in droves, many of them in tears, that the new system is “overwhelming” them with paperwork that is distracting them from actually teaching students. Worse, teachers are quitting over it.Fighting Over Family Planning Money
A Sunday column by Wendi C. Thomas starts like this:I have nothing but respect for the righteous work that Christ Community Health Services does. The workers live their faith by caring for the poor and are irreplaceable.
But — and you knew there was a but coming — so is Planned Parenthood.
Across the country, hundreds of thousands of women, including me, can thank Planned Parenthood for keeping us healthy when we had no access to reproductive care.
But politics has unfortunately pitted the two against each other, in a fight for federal family-planning dollars before the Shelby County Commission. Stuck in the middle are thousands of Memphis women who could go without care or information on all reproductive choices.
Christ Community and Planned Parenthood are in the running to receive a Title X family planning grant to be administered by the county health department, a grant that had historically gone to Planned Parenthood.
But when the state legislature went GOP, the party set as its mission the destruction of Planned Parenthood, even though not a cent of public dollars has ever gone to abortion services.

Release from Senate Republican Caucus:
(NASHVILLE, TN), September 30, 2011 – Major legislation passed by the General Assembly this year which offers businesses predictability and a way to quantify risk as they decide where to locate is set to take effect tomorrow, October 1.
The Tennessee Civil Justice Act of 2011, sponsored by Senate Majority Leader Mark Norris (R-Collierville), Senator Brian Kelsey (R-Germantown), and Senator Jack Johnson (R-Franklin) was part of Governor Bill Haslam’s legislative jobs package. The sponsors say the bill aims to make Tennessee more attractive to businesses while ensuring that injured plaintiffs receive all of the economic, quantifiable damages they suffer.
“When we attract businesses, we attract jobs,” said Senator Kelsey. “This new law will provide certainty and predictability for businesses that want to locate in Tennessee. Before passage, we were the only state in the Southeast that had no limits on possible punitive damage awards. With enactment of this law, Tennessee can become the number one state in the Southeast for high quality jobs.”
“This new law is much more than tort reform, as we must be competitive with other states,” said Leader Norris. “Tennessee has always been on the cutting edge of tort reform. We must remain competitive, not just in the South or in a regional economy, but in the global context. This new law is designed to put us on a level playing field so we have predictability and certainty for businesses which look to locate or expand their operations in Tennessee.”
Key provisions of the law include:
Clarifies and defines the venue where a business can be sued;
Places a $750,000 cap on non-economic damages, except in instances of intentional misconduct, records destruction, or conduct under influence of drugs or alcohol;
Raises the cap to $1 million on non-economic damages for catastrophic losses resulting in paraplegia, quadriplegia, amputation, substantial burns or the wrongful death of a parent leaving minor children;
And places a cap on punitive damages of two times the compensatory damages or $500,000, whichever is greater, except in instances of intentional misconduct, records destruction, or conduct under influence of drugs or alcohol.
“A vibrant market economy does not operate in a vacuum,” said Senator Jack Johnson (R-Franklin), Chairman of the Senate Commerce Committee. “It has to be supported by access to a quality education, opportunity, a good transportation system, and a strong business environment. This bill, coupled with the education reforms passed this year, helps to move us move closer to our goal of making Tennessee the most competitive state in the region.”
Norris pointed to the success of the 2008 medical tort reform law which he sponsored with Senator Doug Overbey (R-Maryville) that has been successful in reducing lawsuits since its implementation. The law has resulted in a reduction in non-meritorious claims by 50 percent.
The Tennessee Civil Justice Act applies to all liability actions for injuries on or after the October 1 enactment date.

Even as a large segment of the population moves into its later years of life and might require nursing home care, Tennessee is moving toward lighter regulation of nursing homes, fewer state investigations and laws that make it more difficult to bring potentially costly lawsuits against operators, according to The Tennessean.Many nursing homes in Tennessee also now require patients or their families to sign agreements waiving their rights to a trial before admission.
A measure passed earlier this year by the legislature places strict new limits on the rights of nursing home patients and their families to sue nursing homes for poor care. That law, which caps the amount a jury can award, goes into effect this week.
This comes just a couple of years after the legislature in 2009 vastly reduced oversight of the 325 nursing homes in the state by eliminating regulations mandating that nursing home operators file detailed reports on adverse events affecting patients. Also eliminated were requirements that the state investigate those incidents. Officials said the change was needed so they could spend their time investigating more serious complaints.
Tennessee has not fared well compared with other states in some key quality measures of nursing homes. And federal officials have said the state has failed in its regulation of such homes. A report issued this year by the U.S. Government Accountability Office gave the state Health Department failing scores for its performance in investigating serious complaints against nursing homes. It said there was a backlog of cases that had gone uninvestigated, and it cited a staff shortage as a factor.
…Data compiled by the federal Centers for Medicare & Medicaid Services show Tennessee ranks fourth out of 50 from the bottom in the number of hours per patient per day provided by certified nurse assistants. It ranks seventh from the bottom in registered nurse hours per patient per day, according to the CMS data.
The latest data show Tennessee nursing homes provide an average of 0.62 hours of registered nursing care per patient per day. Assistant Health Commissioner Christy Allen said that was comparable to other states in the region. Neighboring Kentucky provides 0.8 hours, while Florida provides 0.64. The states that provide the most hours are generally lower-population states: Hawaii nursing homes average 1.36 hours, Delaware provides 1.22 hours and Alaska 1.86 hours.
According to state health officials, current law and regulations require licensed nursing personnel to provide only 0.4 hours of direct care per patient each day.

ERWIN, Tenn. (AP) — Gov. Bill Haslam doesn’t intend to update the state’s new law limiting payouts in successful lawsuits against doctors and other businesses, despite calls from some members of his own party for changes to be made in the upcoming legislative session.
The Republican governor tells The Associated Press that he isn’t aware of any push to change the law that caps non-economic damages at $750,000.
Haslam said he’s met with more than 100 businesses since the law was enacted and that the response has been universally positive.
But Republican Rep. Vance Dennis of Savannah has filed a bill seeking to lift the cap in cases where injuries were caused during a felony, while Rep. Judd Matheny of Tullahoma, also a Republican, has called for lowering the caps to less than $300,000.
(Note: Dennis’ felony amendment was part of the bill as passed by the House in the past session, but was not in the Senate version. In asking House members to go along with the Senate version this year — as they did — Dennis said he had been assured by Senate leadership that they would support the felon provision if presented in a seprate bill next year. )

House Speaker Pro Tempore Judd Matheny told a Doctors Town Hall audience at Lipscomb University in Nashville on Saturday that he hopes this year’s tort reform legislation is only “the first step of several steps in issues we hope to deal with in regard to tort reform,” reports Mike Morrow.During a break in the formal discussion, Matheny elaborated on those plans and pointed to a so-called “loser pays” effort that could be the next measure in tort liability in Tennessee.
“I just know the General Assembly is very interested in additional tort reform,” Matheny said.
“‘Loser-pays’-type scenarios are ones we will look at, especially with regard to what would be perceived as malicious lawsuits.”
Matheny said potential legislation would address situations where there are possibly second or third appeals in cases.
“A case in point would be if somebody filed a third appeal and the answer was the same as the first two, whether both are in the negative or both in the positive. That person would be responsible for the legal fees,” he said.
The approach would be to confront those who are seen as abusing the system. It would follow a tort reform measure passed this year and spearheaded by Haslam that put caps on non-economic damages in civil cases at $750,000, although the law creates exceptions in cases that involve intentional misconduct, destruction of records or activity under the influence of drugs or alcohol.
(Note: Sen. Stacey Campfield has been actively promoting the idea of ‘loser pays’ legislation on his blog and otherwise lately. He’s talked of following a California law, As explained in a recent post:In California if an offer (to settle a lawsuit) is made that is NOT accepted by the opposing side and the court finds the offer was reasonable (within 10% of the final award) then the person not accepting the offer has to pay the other sides legal fees.

By Lucas Johnson
NASHVILLE, Tenn. — A measure to cap payouts for medical malpractice and other civil cases is good for business in Tennessee, said Gov. Bill Haslam, who signed the bill Thursday.
The law places a $750,000 cap on non-economic damages such as pain and suffering. The cap will be raised to $1 million in cases involving serious spinal cord injuries, severe burns or the death of a parent of minor children.
Punitive damages are capped at twice the amount of compensatory damages or $500,000, whichever is greater.
“We wanted to make sure we did everything we could to protect victims’ rights, but also have a predictable playing field for businesses,” said the Republican governor.
Valerie Nagoshiner, acting director of the National Federation of Independent Business in Tennessee, said the law should help.
“Small businesses are especially vulnerable to frivolous lawsuits,” Nagoshiner said in a release. “It’s hard enough for them to defend themselves against even the weakest of claims, but one outrageous jury award or one frivolous lawsuit can be the difference between a small, family-owned business staying open or closing for good.”
Critics say the law weakens company accountability. They say juries should decide damages.
“Everyone should be held accountable when they make a mistake,” said Democratic Sen. Andy Berke of Chattanooga. “All our jury system does is ensure that we have a fair way to judge that. Unfortunately, too often in our society we are seeing personal responsibility and accountability go by the wayside.”
Mary Mancini, executive director of Tennessee Citizen Action, agreed.
“Damage awards act as a deterrent and make large corporations think twice about repeating egregious acts that can lead to abuse, neglect, and death,” she said. “This bill takes away the right of victims to have their full day in court and the right of juries to hold accountable responsible parties as they see fit.”

The House agreed to a Senate change in Gov. Bill Haslam’s tort reform bill today – somewhat reluctantly – and gave the measure final legislative approval.
The Senate version of the bill cut out a House provision that would exclude convicted felons from protection against unlimited non-economic damages in lawsuits for their wrongdoing.
The overall bill limits non-economic damages to $750,000 in most cases, providing the first such restrictions to be imposed in Tennessee.
House sponsor Rep. Vance Dennis, R-Savannah, said he disliked the Senate’s move, but wanted to go ahead and concur with the change for expediency in the waning hours of the legislative session. He said Haslam’s administration, Senate sponsors and others have promised to work with him to add the House ban on felons benefiting from the damage caps in a separate bill, though that will likely have to wait until next year.
“Just so everyone well know, we’re giving felons the same protection as anyone else (by agreeing to the Senate amendment),” said Rep. Eddie Bass, D-Prospect.
Vance said he “agrees with that assessment,” but repeated that he is committed to following up later with a bill to block felons from benefiting.
The House ultimately concurred with the Senate amendment on a 68-27 vote, sending the bill (HB2008) to Haslam for his signature.Note: Haslam issued a news releae applauding the approval of his bill. It’s below.